Opinion
June 8, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 35
Kreager, Sublett & Dowis, Graydon F. Dowis, Jr., Sterling, for defendant in error Town of Holyoke.
Sherman E. Walrod, Holyoke, Francis A. Benedetti, Wray, for plaintiff in error.
Wood, Ris & Hames, David M. Bryans, Denver, for defendant in error Safeway Stores, Inc.
PIERCE, Judge.
This case was transferred from the Colorado Supreme Court pursuant to statute.
This is a slip and fall case. Plaintiff was injured on a public sidewalk in front of the Safeway Store in Holyoke, Colorado, on January 17, 1966, at 10:00 a.m., as he returned to his car from the store with a box of groceries. At the time of the accident, approximately one-third of the sidewalk nearest the street was covered with snow and ice and it was on this portion of the walk where plaintiff slipped and fell.
Evidence indicated that Safeway's manager hired a boy who removed the snow from the public sidewalk in front of the store on the day prior to the accident, but there was no showing that he deposited any snow on that portion of the walk left unshoveled. Subsequently, during the night of the 16th or early morning of the 17th, a one-inch snow fell. The manager did not remember whether anyone shoveled or swept the sidewalk on the morning of the 17th, prior to plaintiff's fall.
After plaintiff rested his case, the trial court granted a directed verdict in favor of the Town of Holyoke on two grounds, the dispositive one being that the Town was not negligent since it had no notice, actual or constructive, of any dangerous condition and therefore had no reasonable opportunity to remedy the condition. Upon completion of trial, the jury's verdict was returned in favor of plaintiff against the remaining defendant, Safeway. Thereafter, the trial court entered an order granting Safeway's motion for judgment notwithstanding the verdict. Plaintiff claims that the trial court erred in granting the directed verdict in favor of the Town of Holyoke and in granting Safeway's motion for judgment notwithstanding the verdict.
I.
In order to hold the Town negligent it was incumbent upon plaintiff to prove that the Town had actual or constructive knowledge of the dangerous condition or that the ice had remained upon the sidewalk for a sufficient length of time to charge the Town with notice of its presence on the sidewalk. Kanter v. City and County of Denver, 153 Colo. 389, 386 P.2d 349. In the instant case, plaintiff offered no evidence that the Town had actual knowledge of the dangerous condition of the walk. In Denver v. Dugdale, 127 Colo. 329, 256 P.2d 898, the Colorado Supreme Court stated:
'When it definitely is established by the evidence, as here, that the condition of which complaint is made was due to weather conditions existing for a period of two days, and not before, and that likely similar conditions existed generally in the area, to hold that the City could be charged with constructive notice of the condition and liable for its failure to remedy the situation, would be to exact that which is practically impossible, and the law does not require that which is unreasonable; it would mean that in the case before us the City would be required to remove from its many miles of sidewalk a natural accumulation of ice and snow, which is obvious and known to travelers, who assume some risk in such circumstances. * * *'
In this case, there was evidence that the hazardous condition of the sidewalk existed for approximately 24 hours. Beyond that, no evidence was presented from which the length of time the ice was on the sidewalk could be determined. In the absence of such a showing, a directed verdict in favor of the Town of Holyoke was proper. Beezley v. Olson, 129 Colo. 406, 270 P.2d 758.
II.
It is the rule in Colorado that although the owner of property abutting a public sidewalk owes no common-law duty to pedestrians to keep the walks adjacent to his property free from ice and snow accumulated through natural causes, W. T. Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881, an affirmative act of a property owner which helps to create a hazardous situation may result in actionable negligence. Sill v. Lewis, 140 Colo. 436, 344 P.2d 972. The record here, however, reveals no evidence that the sidewalk in question was made more dangerous after being cleared by Safeway. There was merely evidence that it was cleared or partially cleared, and the clearing of a portion of the sidewalk, without more, cannot be a basis for defendant's liability. Hecht Co. v. Hohensee, 65 App.D.C. 328, 83 F.2d 585. Disregarding conflicting evidence, giving to plaintiff's evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence, we find that the record is devoid of a factual basis supportive of the jury's verdict. A judgment notwithstanding the verdict was properly granted. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353; see 4 V. Dittman, Colorado Practice Methods 157.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.